Bill would require FOIA disclosures for SCC

Del. Scott Surovell, D-Fairfax, wants to shine more light on the workings of the State Corporation Commission by making the state agency subject to Virginia’s Freedom of Information Act.

Surovell won a measure of success on Sept. 12, when the Virginia Freedom of Information Advisory Council voted to support the delegate’s efforts to work with SCC staff and representatives of regulated industries for a compromise bill. The 2013 General Assembly referred Surovell’s House Bill 2321 to the FOIA Advisory Council for further study.

Regulated industries, such as banks, railroads, insurance companies and public utilities, oppose blanket FOIA coverage of the SCC, fearing public disclosure of proprietary information shared by businesses as part of the regulatory process.

Surovell first began working on a bill to bring the SCC under the state FOIA statute in 2011, after the Supreme Court of Virginia said in Christian v. SCC (VLW 011-6-123) that the commission is not subject to the Virginia FOIA.

The SCC has identified at least 27 different statutes that govern what information the agency may make public, which the Supreme Court said demonstrated the agency is governed by a separate and parallel structure of laws.

“I don’t think that the legislature ever intended to exempt the SCC” from FOIA coverage, Surovell told the Council. “A recommendation from this body would be useful in terms of beefing up the viability of the bill” in the 2014 legislative session, he said.

Surovell’s proposal would amend the FOIA statute to state that the SCC would be considered a “public body,” with the “same obligation to disclose public records” as other custodians of public records, except for disclosure of public records that pertain to the commission’s “regulatory activities.” The draft bill also says the SCC would not be considered a “public body” under FOIA’s “public meeting” provisions.

Council member Christopher Ashby asked Surovell “what would be available that’s not presently available” under the proposed bill. Surovell cited procurement information as one example, but said “it’s hard to say because we don’t know what’s there.” Ashby also asked whether the statute would apply retroactively, to compel disclosure of information regulated industries filed with the commission during the post-Christian period when confidentiality was assumed.

“That could easily be drafted,” Surovell said.

Megan Rhyne, executive director of the Virginia Coalition for Open Government, said the attitude that the SCC is “special and different” is not supported by practices in other states, including states that have hybrid agencies whose duties include deciding cases.

SCC Deputy General Counsel Scott White said the commission does not support placing the SCC in the general state FOIA statute. “The SCC is an independent department of the government. The way it’s structured makes it very difficult to put it in FOIA. The commission operates as a judicial body,” not only as an executive body, he said.

But the commission operates with public funds, said Sen. Richard H. Stuart, R-Montross, chair of the Advisory Council. “Why should you not have to disclose what you spend on furniture” and salaries of the agency’s top administrators?

White said the agency had no objection to disclosure of those specific kinds of information.

Verizon representative David W. Ogburn Jr. objected to Surovell’s proposal. “The SCC is a tax assessor. They have records on our infrastructure by street address,” including the “electrical structure within a mile of the Pentagon. This bill allows that information into the public domain,” Ogburn warned. Brentley Archer, a representative of the natural gas industry, said sensitive information producers have been able to confidentially share with the SCC has made Virginia’s natural gas safety policy the best in the country.

“It would act to the detriment of industries that communicate with SCC staff” to put the agency’s disclosure responsibilities in the FOIA statute, Archer said.

Council members had questions about the scope of “regulatory activities” in Surovell’s proposal, but were more comfortable with requiring greater disclosure of personnel and procurement records.

“These two terms are fairly specific,” said Council member Kathleen A. Dooley, Fredericksburg City Attorney. Dooley said she had not heard any reason “why they shouldn’t be brought under the general provisions of FOIA.”

The council voted unanimously to support Surovell’s continued efforts to work with “stakeholders” to further clarify coverage under his proposed bill. Council member James Schliessmann abstained, explaining that the Office of the Attorney General has no position on the proposal.